Citation Nr: 1620448 Decision Date: 05/19/16 Archive Date: 05/27/16 DOCKET NO. 11-04 164 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an initial compensable evaluation for attention deficit-hyperactivity disorder, primarily hyperactive type (ADHD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. Lavan, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1967 to July 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In November 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this proceeding is associated with the claims file. Following the hearing, the undersigned left the Board and in February 2013, the Veteran was issued a letter notifying him of his right to a new hearing before a current Veterans Law Judge. Though the Veteran did not respond to that letter and his right to a new hearing was considered waived, of note is the fact that the undersigned subsequently returned to the Board and will be issuing this decision. The Board remanded this matter in June 2013 to obtain VA medical examinations as well as outstanding medical and Social Security Administration (SSA) records. The matter has been properly returned for appellate consideration and the Board is satisfied that there has been substantial compliance with the June 2013 Board remand. In January 2016, the Veteran through his representative, submitted a Motion to Advance on the Docket. In February 2016, the Board granted the Veteran's motion. The Board has reviewed the physical claims files and both the Veterans Benefit Management System (VBMS) and the "Virtual VA" files. FINDINGS OF FACT 1. The Veteran's ADHD has been manifested by fidgeting and thrill-seeking behavior, but does not cause social or occupational impairment. 2. The Veteran's service-connected disabilities, considered as a whole, do not render the Veteran unemployable. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for the service-connected ADHD have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9435 (2015). 2. The criteria for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5107(b) (West 2014); 38 C.F.R. §§ 3.341, 4.16(a), 4.25 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability Ratings in General The Veteran requests a compensable rating for his service-connected ADHD. Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. If two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, the Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. In this case, the Veteran is seeking a compensable rating for his service-connected ADHD, rated under Diagnostic Code 9435. Ratings under this code are assigned based on the general rating formula for mental disorders. A noncompensable rating is warranted for a mental condition that has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. A 10 percent rating is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. Id. A 30 percent rating is warranted for a psychiatric disorder that causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. A rating of 50 percent rating is assigned when a psychiatric disorder causes occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The regulations rating psychiatric disorders were recently amended to replace references to DSM-IV to DSM-5 and update the nomenclature used to refer to certain psychiatric conditions. The amended provisions apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. See 79 Fed. Reg. 45093 (August 4, 2014). Because the Veteran's claim was certified to the Board prior to August 4, 2014, the claim is governed by DSM-IV. Therefore, while the Board acknowledges that the DSM-5 represents the most up-to-date clinical diagnostic guidelines, due process requires that the Veteran's claim must also be considered using the DSM-IV criteria. The DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between 0 and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). The DSM-IV contemplates that the GAF scale will be used to gauge a person's level of functioning at the time of the evaluation (i.e., the current period) which will generally reflect the need for treatment or care. While GAF scores are probative of the Veteran's level of impairment, they are not to be viewed outside the context of the entire record. Therefore, they will not be relied upon as the sole basis for an increased disability evaluation. Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A score of 41 to 50 is indicated where there are serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). A GAF score of 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peer or coworkers). A score of 61-70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. A score of 71-80 indicates that, if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational or school functioning (e.g., temporarily falling behind in schoolwork). When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms. Thus, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. In determining the actual degree of disability, contemporaneous medical records and an objective examination by a mental health professional are more probative of the degree of the Veteran's impairment than his assertions that a particular rating should be assigned. This is particularly so where the rating criteria require analysis of the clinically significant symptoms of a complex mental health condition, but the Veteran is a layman. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); King v. Shinseki, 700 F.3d 1339, 1344-45 (Fed. Cir. 2012). The Board finds that the medical opinions of this Veteran, who lacks mental health training, are not competent evidence of the clinical significance of his symptoms. Id. The Board, however, has considered the Veteran's subjective reports of symptoms, particularly as they illuminate or underscore the medical opinions of record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Compensable Evaluation for ADHD Analysis The Veteran contends that his service-connected ADHD warrants a compensable evaluation. During the Board hearing in November 2011, he stated that he has difficulty paying attention, maintaining focus, and finishing work. He also reported having difficulty falling asleep without medication, feeling "fidgety" in crowds of people, and having only one friend who was also a Vietnam War Veteran. The Veteran's VA medical records from July 2010 to August 2013 have been associated with the record. The Veteran had a mental health consultation in July 2010 during which he described his Vietnam War experience as "the best time in my life . . . I am a[n] adrenaline junkie." He reported that he often feels tired, has trouble sleeping, and has a poor appetite or overeats. The examiner noted that he had a good mood, calm affect, goal-directed thought process, normal speech, and good insight. There was no evidence of memory, concentration, or attention deficits or evidence of psychomania, mania, paranoia, suicidal ideation, or homicidal ideation. He was assigned a GAF score of 80. The physician diagnosed him with adjustment disorder, unspecified. Records from February 2011 show that the Veteran was diagnosed with depression related to being retired. The Veteran presented to VA for several mental health visits from June 2011 to February 2012. Records reflect that he reported feeling little interest or pleasure in doing things and having trouble sleeping, staying asleep, or sleeping too much more than half of the days in the two weeks prior to each visit. He also reported feeling tired, bad about himself, and depressed nearly every day in the two weeks prior to his visits. The psychologist noted that he had a good mood, calm affect, goal-directed thought process, normal speech, and good insight. There was no evidence of memory, concentration, or attention deficits or evidence of psychomania, mania, paranoia, suicidal ideation, or homicidal ideation. He was assigned a GAF score of 70 at each visit in October 2011, January 2012, and February 2012. In June 2011, he was assigned a GAF score of 72. Additionally, the Veteran's SSA records have been associated with the file. In November 2010, the Veteran underwent a psychiatric evaluation. He complained of feeling depressed and anxious, lacking motivation, and having sleep issues due to his sleep apnea. The Veteran stated his depression stems from his inability to work. The physician concluded that the Veteran presented with a clinical condition suggestive of dysthymia secondary to his physical problems. Private mental health treatment records were also associated with the SSA file. They show treatment for major depressive disorder and opiate withdrawal from prescribed medications from May 2006 to February 2010, when treatment ended because the Veteran was doing well. At the time of discharge, the Veteran was not taking medication. Because the Veteran's claim on appeal was initially characterized as a service connection claim for a psychiatric disorder to include posttraumatic stress disorder (PTSD), the Veteran was afforded an initial evaluation for PTSD by VA in May 2010. The examiner concluded that the evidence is insufficient to diagnose the Veteran with PTSD. Instead, the examiner diagnosed the Veteran with ADHD and ruled out a mood disorder diagnosis. In support of his conclusion, the examiner noted that the Veteran presented with a uniformly positive response to the excitement and adrenaline charge of his combat experience and that the Veteran reported a history of hyperactivity and sensation-seeking. The examiner opined that the Veteran's ADHD caused mild to moderate social impairment and no occupational impairment. He assigned the Veteran a GAF score of 60. The Veteran was also afforded a mental disorders examination in August 2013. The examiner diagnosed the Veteran with depressive disorder nonspecific and ADHD, and assigned a GAF score of 60. She opined that it was possible to differentiate the symptoms from each diagnosis, noting that his ADHD was not currently causing any prominent psychiatric symptoms. Although the examiner found that the Veteran experienced occupational and social impairment, she determined that the Veteran's nonservice-connected depressive disorder, not the Veteran's service-connected ADHD, caused the noted impairment. In making this conclusion, the examiner reported that the Veteran did not report recent prominent hyperactive symptoms with the exception of feeling fidgety. She also relied on VA treatment records that show the Veteran has been experiencing depressive symptoms because of retirement and his physical limitations. Importantly, the examiner noted that the Veteran did not report concerns about ADHD symptoms during the examination and "appeared confused" when questioned about his ADHD claim. In consideration of the lay and medical evidence, the Board finds that the Veteran's service-connected ADHD does not warrant a compensable rating. The Board relied on the August 2013 VA opinion and finds that the Veteran's nonservice-connected depression is the cause of his symptoms and impairment, not his service-connected ADHD. Although the Board is typically precluded from differentiating between symptomatology attributed to a nonservice-connected disability and that which is attributed to a service-connected disability, the Board may do so where medical evidence makes that distinction. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996)). In light of the August 2013 VA opinion, the Board is able to separate the symptoms associated with the Veteran's depressive disorder from those associated with his ADHD in evaluating his claim. The Board also found the Veteran's complaints of and treatment for depression, rather than ADHD, probative. Specifically, VA medical records report depression secondary to retirement. The Veteran reported in his November 2011 psychological evaluation that he was depressed due to his retirement and the physician concluded that the Veteran had dysthymia secondary to his physical problems, which led to his retirement. Additionally, the Veteran's medical records associated with his SSA claim show treatment for depression and the Veteran's contentions that his depression stemmed from his inability to work. Although the May 2010 VA examination indicated that the Veteran's ADHD caused mild to moderate social impairment, the Board finds the other medical and lay evidence more probative in this regard. The May 2010 examiner ruled out a diagnosis of a mood disorder, even though the Veteran's treatment history for depression extended to May 2006. Because the examiner attributed the Veteran's symptoms to his ADHD without addressing the Veteran's other diagnoses, the Board accords less weight to the May 2010 VA opinion than to the August 2013 VA opinion, VA and SSA records, and the Veteran's contentions. The Board considered the Veteran's and his wife's contentions that his ADHD causes social and occupational impairment. The Veteran is competent to report symptoms of a psychiatric disability. Barr v. Nicholson, 21Vet. App. 303 (2007). The Veteran and his wife are not competent, however, to attribute his symptoms to a particular psychiatric disability where there are several coexisting mental health diagnoses. Medical evidence is required to make such a distinction, as determined by the Court in Mittleider. See 11 Vet. App. at 182; see also Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant."). In light of the competent lay and medical evidence, the Board finds that the Veteran's ADHD does not warrant a compensable rating. Extraschedular Consideration The Board has considered whether referral for an extraschedular rating is warranted for the Veteran's ADHD during the appeal period. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation Services, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service connected disability or disabilities. The governing norm in these exceptional cases is: a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. Second, if the schedular rating does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet App 111 (2008). With respect to the first prong of Thun, the Board finds that all the symptomatology and impairment caused by the Veteran's ADHD is specifically contemplated by the schedular rating criteria and no referral for extraschedular consideration is required. The schedular rating criteria under DC 9435 provide for disability ratings based on a combination of psychiatric symptoms, findings, and impairment due to the symptoms. In this case, the Veteran's ADHD is not causing prominent psychiatric symptoms or social or occupational impairment. For these reasons, the Board finds that the assigned rating is adequate and no referral for an extraschedular rating is required. According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Absent any exceptional factors associated with the Veteran's disability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is potentially an element of all rating issues. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has made a separate claim for a TDIU that will be addressed in the below analysis. TDIU Legal Standard A TDIU may be assigned when the disabled veteran is, in the judgment of VA, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran does not meet the initial eligibility requirements to receive TDIU benefits. The Veteran is currently rated at 20 percent for his right ankle disability, 10 percent for tinnitus, 0 percent for ADHD, and 0 percent for right ankle scars. His combined rating is 30 percent, which does not satisfy the threshold. See 38 C.F.R. § 4.16(a). If a claimant does not meet the threshold criteria, a total disability evaluation may still be assigned, but on a different basis. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). The rating boards are required to submit all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards, to the Director of Compensation Service for extraschedular consideration. Id. For a Veteran to prevail on a claim for entitlement to TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Importantly, disability ratings are based on the average impairment in earning capacity resulting from the disability. 38 U.S.C.A. § 1155; see also 38 C.F.R. § 4.1. For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect circumstances which place that Veteran's case in a different category than other Veterans with an equal rating of disability. Van Hoose, 4 Vet. App at 363. TDIU Analysis During the November 2011 Board hearing, the Veteran testified that he had been unemployed since 2009 due to his service-connected disabilities. Specifically, he stated that he had been self-employed for over thirty years but could not handle the job anymore. During that time, he owned two welding trucks, a crane, a fabrication shop, and supervised three employees. The Board determined that a claim for TDIU had been raised by the record and remanded the issue for a VA examination in June 2013. Although the Veteran was not afforded a combined-effects examination, the Veteran was afforded a VA examination to assess each service-connected disability. The Board finds that these examinations substantially comply with the June 2013 remand because each opinion addresses the level of occupational impairment caused by the service-connected disability, and there is sufficient information for the Board to determine whether the Veteran is entitled to a TDIU. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that substantial compliance with a Board or Court remand is required, not strict compliance); see also Floore v. Shinseki, 26 Vet. App. 376, 381 (2013) ("The need for a combined-effects medical examination report or opinion with regard to multiple-disability TDIU entitlement decisions is to be determined on a case-by-case basis, and depends on the evidence of record at the time of decision by the regional office (RO) or the Board."). Additionally, a remand for a combined-effects examination would result in additional delay without having a reasonable chance of benefiting the Veteran's claim and is thus unnecessary. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Per the Board's remand, a VA medical opinion was requested to assess the impairment caused by the Veteran's service-connected tinnitus. The audiologist submitted that severe tinnitus, which is rare, is accompanied by psychological symptoms that lead to unemployability. Accordingly, the audiologist indicated that a mental health professional is the appropriate specialist to issue such an opinion. The Veteran was afforded a VA mental health examination in August 2013. The Veteran reported that his activity level has been inhibited by his medical issues, including a pacemaker secondary to nonservice-connected cardiac arrhythmia and multiple, nonservice-connected, back issues. The examiner determined that the Veteran's service-connected ADHD was not currently causing any impairment. The examiner further concluded that the Veteran's psychiatric conditions, including ADHD and depressive disorder, were less likely than not affecting his ability to sustain gainful employment. In making this determination, the examiner relied on the Veteran's contention that his lack of work and activities stemmed from his physical issues as well as his medical records which show he became depressed following retirement. The Veteran was also afforded a VA examination for his right ankle disability and related scars. The Veteran reported flare-ups of his right ankle that impact standing, walking, bending, stopping, squatting, and kneeling. He has right ankle plantar flexion to 10 degrees, extension to 5 degrees, and pain at 0 degrees for flexion and extension. Repetitive testing did not produce any additional limitation in range of motion. The examiner opined that the Veteran has functional loss and/or functional impairment of the right ankle in the form of less movement than normal, weakened movement, pain, deformity, instability, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. The Veteran does not use assistive devices as a normal mode of locomotion. The examiner concluded that the Veteran's right ankle disability impacts his ability to work and prevents him from squatting, bending, stooping, kneeling, or climbing ladders, but not standing, walking, using stairs, and driving with rest periods. He opined that the Veteran would be unlikely to secure or maintain substantially gainful employment involving physical work but would be able to engage in sedentary employment. There are two linear scars related to his right ankle disability that are 6 centimeters and 1 centimeter in length. The examiner concluded that the scars do not result in limitation of function nor are there complications, including nerve damage, associated with the scars. VA medical records show that the Veteran was in a motorcycle accident in 2003 that resulted in a fractured right femur, right tibia, and right fibula. In May 2011, the Veteran injured his back while attempting to pick up his 750 pound motorcycle. Additionally, the Veteran has a permanent pacemaker due to his cardiac arrhythmia that was inserted in July 2010. During a mental health consult in May 2011, the Veteran reported that he had to sell his job because of his increasing health issues. He still spent time in his shop but was unable to weld or use certain equipment as a result of his pacemaker. Additionally, the Veteran reported that his back injury impacted his ability to ride his motorcycle. The Veteran filed for SSA disability in August 2010 and January 2011 due to his heart condition, irregular heartbeat, and high blood pressure. He reported that he stopped working in January 2010 because of his conditions. A private medical examination from November 2010 was included in the medical evidence. During the examination, the Veteran complained of persistent back and hip pain that prevented him from performing his usual activities like driving, walking long distances, or sitting for prolonged periods of time. The physician diagnosed sleep apnea, low back pain, arthralgia, myalgia, and cardiomyopathy. His SSA records also show the Veteran obtained a GED. In May 2011, SSA denied the Veteran's request for reconsideration of his case and determined that the Veteran was not severe enough to prevent him from working. The Board finds that the facts of this case do not warrant extraschedular consideration. The medical and lay evidence indicates that the Veteran's ADHD, tinnitus, and right ankle scar do not affect his occupational impairment. Instead, the lay and the medical evidence shows that the Veteran's occupational impairment stems from his numerous physical disabilities related to his heart, back, and sleep apnea. Although the August 2013 VA medical opinion concluded that the Veteran's right ankle condition would prevent him from performing physical labor, the Board finds that the other medical and lay evidence shows that the Veteran's nonservice-connected medical conditions motivated the Veteran to retire from his business. Specifically, the Veteran has consistently related his retirement and lack of recreational activities to his back pain, hip pain, heart conditions, and pacemaker. Additionally, the Veteran's service-connected disabilities do not render him unemployable. The Veteran has a GED as well as experience managing a business and supervising employees. The evidence does not show that the facts of this case are outside the norm and the Board finds that a TDIU is not warranted at this time. Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has a duty to notify and assist claimants. Upon receipt of a complete or substantially complete application, VA is required to notify the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015). In addition, VA must request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 C.F.R. § 3.159(b). The Board finds that the VCAA notice requirements have been satisfied. In December 2009, the RO mailed a pre-adjudicatory letter to the Veteran that outlined the evidence required to substantiate his claim, and the Veteran's and VA's respective responsibilities in obtaining that evidence. Moreover, the letter requested that the Veteran provide any evidence in his possession, including relevant treatment records and supporting lay statements. Thus, the Veteran received all required notice concerning his claim. VA also has a duty to assist a veteran in obtaining evidence necessary to substantiate a claim, which includes providing an adequate medical examination or opinion when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. A medical opinion is adequate when it is based upon consideration of the veteran's prior medical history and examinations, and describes the disability in sufficient detail to enable the Board's evaluation to be fully informed. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds that VA has satisfied its duty to assist regarding the Veteran's claim. The claims file contains the Veteran's service treatment records, VA medical treatment evidence, the Veteran's statements, and SSA records. The Veteran was also afforded VA examinations in May 2010 and August 2013. These examinations were adequate because they were performed by a medical professional, were based on a review of the Veteran's record, history, and symptomatology, and complied with the remand directives. Additionally the Veteran provided testimony at a video hearing in November 2011. During such a hearing, a Veterans Law Judge has a duty to fully explain the issues and suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). In the present case, the Veterans Law Judge clearly set forth the issues to be discussed, sought to identify pertinent evidence not currently associated with the claims folder, and elicited further information as to the dates and locations of treatment when appropriate. The hearing focused on the elements necessary to substantiate his claims and the Veteran, through his testimony and questioning by his representative, demonstrated his actual knowledge of the elements necessary to substantiate his claim. The Board finds that VA fully complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant. Finally, all due process considerations have been met. Additional evidence was received after issuance of the most recent supplemental statement of the case. In November 2015 and January 2016, the Veteran's representative waived any further RO action on that evidence. ORDER Entitlement to an initial compensable rating for attention deficit-hyperactivity disorder, primarily hyperactive type, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is denied. ______________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs